C2030 landscape and communities - creatives call off contract T&Cs - Annex 2

Annex II

The Cairngorms Nation­al Park Author­ity (Park Author­ity) Terms and Con­di­tions of con­tract for the pur­chase of services

These Con­di­tions may only be var­ied with the writ­ten agree­ment of the Cairngorms Nation­al Park Author­ity (the Pur­chaser). No terms and con­di­tions put for­ward at any time by the Cre­at­ive (the Sup­pli­er) shall form any part of the Con­tract unless spe­cific­ally agreed in writ­ing by the Purchaser.

1. Defin­i­tions

   In these conditions:

   ‘Pur­chaser’ means the Cairngorms Nation­al Park Author­ity (Park Authority).

   ‘Sup­pli­er’ means the indi­vidu­al, part­ner­ship, com­pany or organ­isa­tion provid­ing the Services.

   ‘Ser­vices’ means the cre­at­ive ser­vices described in a Call-Off Order as spe­cified in the Com­mis­sion­ing Brief, and any oth­er doc­u­ments (or parts there­of) spe­cified in the con­tract award let­ter (and / or as oth­er­wise agreed in writ­ing between the parties from time to time) and shall, where the con­text so admits, include any mater­i­als, art­icles and goods to be sup­plied there­un­der including:

   a) Land­scape draw­ings or dia­grams; b) Land­scape paint­ings; c) Digit­al illus­tra­tions; d) Land­scape pho­to­graphs; e) Com­munity engage­ment activ­it­ies, includ­ing work­shops, guided walks, field sketch­ing and pho­to­graphy activ­it­ies; f) Films and video con­tent; g) Phys­ic­al or digit­al mod­els or map­mak­ing; h) Storytelling, inter­pret­a­tion and oral histories.

   ‘Call-Off Order’ means the writ­ten com­mis­sion issued by the Park Author­ity set­ting out the Ser­vices, Deliv­er­ables, fee and timescale.

   ‘Deliv­er­ables’ means the work, mater­i­als or out­puts pro­duced under a Call-Off Order.

   ‘Com­mis­sion­ing Brief’ means the doc­u­ment set­ting out the Purchaser’s require­ments for the Con­tract, and which doc­u­ment was pub­lished / issued by the Purchaser.

   ‘Con­tract’ means the con­tract between the Pur­chaser and the Sup­pli­er con­sist­ing of the Com­mis­sion­ing Brief, these con­di­tions and oth­er doc­u­ments (or parts there­of) spe­cified in the con­tract award letter;

   ‘Con­trol­ler’, ​‘data con­trol­ler’, ​‘data pro­cessor’, ​‘data pro­tec­tion impact assess­ment’, ​‘data sub­jects’, ​‘inform­a­tion com­mis­sion­er’, ​‘per­son­al data’, ​‘pro­cessor’ and ​‘pro­cessing’ (includ­ing any deriv­at­ives there­of) shall have the mean­ings giv­en to them in the Data Pro­tec­tion Legislation;

   ‘Data Pro­tec­tion Legis­la­tion’ means any law applic­able relat­ing to the pro­cessing, pri­vacy and use of per­son­al data, as applic­able to either party or the Ser­vices, includ­ing: (i) the Data Pro­tec­tion Act 2018 and the Pri­vacy and Elec­tron­ic Com­mu­nic­a­tions Reg­u­la­tions 2003 (PECR); (ii) the Gen­er­al Data Pro­tec­tion Reg­u­la­tion (EU) ²⁰¹⁶⁄₆₇₉, as it forms part of domest­ic law in the United King­dom by vir­tue of sec­tion 3 of the European Uni­on (With­draw­al) Act 2018 (includ­ing as fur­ther amended or mod­i­fied by the laws of the United King­dom or of a part of the United King­dom from time to time) ; (iii) any laws which replace, extend, re-enact, con­sol­id­ate or amend any of the fore­go­ing (wheth­er or not before or after the date of these Con­di­tions); (i) any oth­er applic­able law relat­ing to the pro­cessing, pri­vacy and / or use of per­son­al data; (iv) any laws which imple­ment, replace, extend, re-enact, con­sol­id­ate or amend any such laws; and (v) to the extent they are leg­ally bind­ing: any guid­ance, guidelines, codes of prac­tice, codes of con­duct or approved cer­ti­fic­a­tion mech­an­isms issued by the Inform­a­tion Com­mis­sion­er, or oth­er reg­u­lat­ory or super­vis­ory author­ity respons­ible for admin­is­ter­ing Data Pro­tec­tion Legislation;

   ‘Premises’ means the loc­a­tion where the Ser­vices are to be per­formed, as spe­cified in the Com­mis­sion­ing Brief;

   ‘Pur­chase order’ means the pur­chase order issued in rela­tion to the Services;

2. Change to con­tract requirements

   2.1 The Pur­chaser may, at its sole dis­cre­tion, order any vari­ation to the Ser­vices or any part of the Ser­vices, that for any oth­er reas­on shall in its opin­ion be desir­able. Any such vari­ation may include (but shall not be restric­ted to) addi­tions, omis­sions, alter­a­tions, sub­sti­tu­tions to the Ser­vices and changes in qual­ity, form, char­ac­ter, kind, tim­ing, meth­od or sequence of the Ser­vices. 2.2 Save as oth­er­wise provided herein, no vari­ation of the Ser­vices as provided for in clause 2.1 here­of shall be val­id unless con­firmed by the Pur­chaser. All such orders of vari­ation shall be giv­en in writ­ing provided that if for any reas­on the Pur­chaser shall find it neces­sary to give any such order orally in the first instance the Sup­pli­er shall com­ply with such oral order which must be con­firmed in writ­ing by the Pur­chaser with­in two work­ing days of the giv­ing of such oral order by the Pur­chaser, fail­ing which the vari­ation made by such oral order shall cease to have effect on the expiry of the said two work­ing day peri­od. 2.3 Where any such vari­ation of the Ser­vices made in accord­ance with clause 2.1 and 2.2 has affected or may affect the costs incurred by the Sup­pli­er in provid­ing the Ser­vices, the Sup­pli­er will noti­fy the Pur­chaser in writ­ing of the effect which it has had or may have on the said costs and such noti­fic­a­tion shall be con­sidered by the Pur­chaser, who shall take all of the facts into account (includ­ing such inform­a­tion as may be provided by the Sup­pli­er in respect of the effect which such vari­ation has had or may have on the costs incurred by the Sup­pli­er in provid­ing the Ser­vices) and may author­ise such alter­a­tion to the sums to be paid to the Sup­pli­er in accord­ance with the pro­vi­sions of the Con­tract as are, in his sole opin­ion, appro­pri­ate and reas­on­able in the circumstances.

3. Time of performance

   3.1 The Sup­pli­er shall begin per­form­ing the Ser­vices on the date stated in the Com­mis­sion­ing Brief and shall com­plete them by the date stated in the Com­mis­sion­ing Brief or con­tin­ue to per­form them for the peri­od stated in the Com­mis­sion­ing Brief (whichever is applic­able). Time is of the essence of the Con­tract. The Pur­chaser may by writ­ten notice require the Sup­pli­er to execute the Ser­vices in such order as the Pur­chaser may decide. In the absence of such notice the Sup­pli­er shall sub­mit such detailed pro­grammes of work and pro­gress reports as the Pur­chaser may from time to time require.

4. Pay­ment

   4.1 Unless oth­er­wise stated in the Con­tract and / or agreed in writ­ing between the parties, pay­ment will be made with­in 30 days of receipt and agree­ment of invoices, sub­mit­ted monthly in arrears, for work com­pleted to the sat­is­fac­tion of the Pur­chaser. 4.2 Where the Pur­chaser dis­putes in good faith on reas­on­able grounds any sum invoiced by the Sup­pli­er, the Pur­chaser may with­hold pay­ment in respect of the amount under dis­pute, pending res­ol­u­tion of the dis­pute and / or com­ple­tion of work to the sat­is­fac­tion of the Pur­chaser. 4.3 Value added tax, where applic­able, shall be shown sep­ar­ately on all invoices as a strictly net extra charge.

5. Free-issue mater­i­als

   5.1 Where the Pur­chaser for the pur­pose of the Con­tract issues mater­i­als free of charge to the Sup­pli­er such mater­i­als shall be and remain the prop­erty of the Pur­chaser. The Sup­pli­er shall main­tain all such mater­i­als in good order and con­di­tion and shall use such mater­i­als solely in con­nec­tion with the Con­tract. The Sup­pli­er shall noti­fy the Pur­chaser of any sur­plus mater­i­als remain­ing after com­ple­tion of the Ser­vices and shall dis­pose of them as the Pur­chaser may dir­ect. Waste of such mater­i­als arising from bad work­man­ship or neg­li­gence of the Sup­pli­er or any of his ser­vants, agents or sub­con­tract­ors shall be made good at the Supplier’s expense. Without pre­ju­dice to any oth­er of the rights of the Pur­chaser, the Sup­pli­er shall deliv­er up such mater­i­als wheth­er pro­cessed or not to the Pur­chaser on demand.

6. Copy­right

   6.1 Copy­right in the work shall remain with the Cre­at­ive but the Cre­at­ive is required to grant the Park Author­ity a non-exclus­ive, roy­alty-free, per­petu­al licence to use, repro­duce, dis­play, and dis­trib­ute the work for the Park Authority’s stat­utory and pro­mo­tion­al pur­poses. All Cairngorms 2030 pro­jects are sub­ject to an Open Licence Agree­ment and all mater­i­als cre­ated or digit­ised with this fund­ing is sub­ject to this require­ment. 6.2 An agreed out­put (format to be determ­ined) will be delivered by the agreed date and a copy made avail­able to the Park Author­ity for future use as per Nation­al Lot­tery require­ments. If you have any ques­tions about these, please talk to your pro­ject lead. 6.3 Expli­cit writ­ten per­mis­sions for any film­ing, inter­views, pho­to­graphy and record­ing under­taken should be in place as part of your con­tract with indi­vidu­als, landown­ers and oth­er rel­ev­ant parties. The pur­pose and use of this mater­i­al should be made clear in your per­mis­sion doc­u­ment­a­tion, such as an email. This doc­u­ment­a­tion must be kept and sub­mit­ted with your agreed out­puts. 6.4 The Park Author­ity and The Nation­al Lot­tery Her­it­age Fund should be acknow­ledged in all out­puts and oth­er format media (e.g. blogs) cov­er­ing the pro­ject using stand­ard logos agreed with the Park Author­ity in advance of use. 6.5 The sup­pli­er agrees to com­plete a short inter­view to assist with the deliv­ery of the Cairngorms 2030 mon­it­or­ing and eval­u­ation plan. A set of ques­tions will be provided in advance towards the end of the pro­ject out­put phase.

7. Indem­nity and insurance

   7.1 Without pre­ju­dice to any rights or rem­ed­ies of the Pur­chaser the Sup­pli­er shall indem­ni­fy the Pur­chaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Pur­chaser may suf­fer or incur as a res­ult of or in con­nec­tion with any dam­age to prop­erty or in respect of any injury (wheth­er fatal or oth­er­wise) to any per­son which may res­ult dir­ectly or indir­ectly from any neg­li­gent or wrong­ful act or omis­sion of the Sup­pli­er (which for the avoid­ance of doubt, includes any sub­con­tract­ors of the Sup­pli­er). 7.2 Except in the case of loss, dam­age or per­son­al injury (includ­ing death) suffered by an employ­ee of the Sup­pli­er (in respect of which the indem­nity in con­di­tion 7.1 shall apply wheth­er or not the loss, dam­age or per­son­al injury was caused by the neg­li­gent or wil­ful act or omis­sion of the Pur­chaser) the indem­nity con­tained in con­di­tion 7.1 shall not apply to the extent that the loss, dam­age or injury is caused by the neg­li­gent or wil­ful act or omis­sion of the Pur­chaser. 7.3 The Sup­pli­er shall have in force dur­ing the Contract:

   i) Public and professional indemnity insurance (unless explicitly stated in the Commissioning Brief) for a sum of not less than £5 million, unless otherwise agreed by the Park Authority in writing.
   

8. Racial dis­crim­in­a­tion

   8.1 The Sup­pli­er shall not unlaw­fully dis­crim­in­ate with­in the mean­ing and scope of the pro­vi­sions of the Race Rela­tions Act 1976 or any stat­utory modi­fic­a­tion or re-enact­ment there­of relat­ing to dis­crim­in­a­tion in employ­ment. The Sup­pli­er shall take all reas­on­able steps to secure the observ­ance of these pro­vi­sions by all ser­vants, employ­ees or agents of the Sup­pli­er and all sub­con­tract­ors employed in the exe­cu­tion of the Contract.

9. Ter­min­a­tion

   9.1 Either party may ter­min­ate this Con­tract by giv­ing 14 days’ writ­ten notice to the oth­er party. 9.2 Either party may ter­min­ate this Con­tract imme­di­ately by writ­ten notice if the oth­er party:

   a) commits a material breach of this Contract and fails to remedy that breach within 14 days of being requested in writing to do so; or
   b) becomes insolvent or ceases to carry on business.
   

   9.3 On ter­min­a­tion, the Sup­pli­er shall promptly deliv­er to the Pur­chaser all com­pleted and par­tially com­pleted Deliv­er­ables. 9.4 The Pur­chaser shall pay the Sup­pli­er for Ser­vices prop­erly per­formed and Deliv­er­ables com­pleted up to the date of ter­min­a­tion. 9.5 Ter­min­a­tion shall not affect any rights or oblig­a­tions accrued before the date of ter­min­a­tion. Any pro­vi­sions relat­ing to intel­lec­tu­al prop­erty, con­fid­en­ti­al­ity and data pro­tec­tion shall con­tin­ue to apply after termination.

10. Data pro­tec­tion

    10.1 The Sup­pli­er shall com­ply with all applic­able data pro­tec­tion legis­la­tion, includ­ing the UK Gen­er­al Data Pro­tec­tion Reg­u­la­tion, the Data Pro­tec­tion Act 2018 and any legis­la­tion repla­cing or amend­ing them. 10.2 The Sup­pli­er shall only pro­cess per­son­al data to the extent neces­sary for the per­form­ance of the Con­tract and shall imple­ment appro­pri­ate tech­nic­al and organ­isa­tion­al meas­ures to pro­tect such data against unau­thor­ised or unlaw­ful pro­cessing and against acci­dent­al loss, destruc­tion or dam­age. 10.3 Where the Ser­vices involve pho­to­graphy, film­ing, inter­views, work­shops, storytelling activ­it­ies or oth­er com­munity engage­ment activ­it­ies involving iden­ti­fi­able indi­vidu­als, the Sup­pli­er shall ensure that per­son­al data is col­lec­ted and used law­fully and that any notices, per­mis­sions or con­sents required by law are obtained. 10.4 The Sup­pli­er shall promptly noti­fy the Author­ity of any actu­al or sus­pec­ted per­son­al data breach relat­ing to the Con­tract and shall provide such assist­ance as the Author­ity may reas­on­ably require. 10.5 On com­ple­tion or ter­min­a­tion of the Con­tract, the Sup­pli­er shall securely delete or return any per­son­al data obtained from the Author­ity unless reten­tion is required by law. 10.6 The Sup­pli­er acknow­ledges that the Author­ity is sub­ject to the Free­dom of Inform­a­tion (Scot­land) Act 2002 and the Envir­on­ment­al Inform­a­tion (Scot­land) Reg­u­la­tions 2004. The Sup­pli­er shall provide such assist­ance and inform­a­tion as the Author­ity may reas­on­ably require com­ply­ing with its stat­utory oblig­a­tions under such legislation.

11. Arbit­ra­tion

    11.1 All dis­putes, dif­fer­ences or ques­tions between the parties to the Con­tract with respect to any mat­ter or thing arising out of or relat­ing to the Con­tract, oth­er than a mat­ter or thing as to which the decision of the Pur­chaser is under the Con­tract to be final and con­clus­ive, and except to the extent to which spe­cial pro­vi­sion for arbit­ra­tion is made else­where in the Con­tract, shall be referred to a single arbit­er to be mutu­ally chosen by the parties or, fail­ing agree­ment, nom­in­ated by the Pres­id­ent of the Law Soci­ety of Scot­land for the time being on the applic­a­tion of either party. Any such ref­er­ence to arbit­ra­tion shall be deemed to be an agree­ment to refer to arbit­ra­tion with­in the mean­ing of the Arbit­ra­tion (Scot­land) Act 2010.

12. Gov­ern­ing law

    12.1 These Con­di­tions and the Con­tract shall be gov­erned by and con­strued in accord­ance with Scots law and the parties hereby irre­voc­ably sub­mit to the exclus­ive jur­is­dic­tion of the Scot­tish courts.